May a Missouri lawyer return or destroy client-file discovery under a protective order or settlement agreement?

Plain-English summary

Discovery documents belong to the client file, subject to limited exceptions. Rule 4-1.22 permits early destruction only with informed consent confirmed in writing, no intrinsic-value item, and none of the rule's listed prohibiting conditions.

If a client refuses consent to handling required by a protective order, the lawyer should seek permissible modification. If unsuccessful, Rules 4-1.15(d), 4-1.16(d), and 4-3.4(c) permit compliance, while the remainder of the file must be delivered or retained.

A settlement follows the client's decision under Rule 4-1.2(a). The lawyer may agree to return or destroy file portions with the client's required consent or agreement, but may not accept a restriction on the lawyer's right to practice under Rule 4-5.6(b).

In practice

Under this opinion, a court order and a negotiated settlement use different routes, but both preserve the client's file rights and the rule against practice restrictions.

Common questions

Q: May the lawyer comply with a protective order?

A: Yes, after seeking permissible modification when the client refuses consent and then preserving the remainder of the file.

Q: May settlement require destruction?

A: Yes, with the client's informed consent confirmed in writing and Rule 4-1.22 compliance.

Q: May the settlement restrict future practice?

A: No.

Background and rules framework

Rules 4-1.15, 4-1.16, and 4-1.22 govern the file; Rules 4-3.1 and 4-3.4 govern court-order compliance; Rules 4-1.2 and 4-5.6 govern settlement decisions and practice restrictions.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.0(b), 4-1.0(e), 4-1.2(a), 4-1.15(d), 4-1.16(d), 4-1.22, 4-3.1, 4-3.4(c), and 4-5.6(b)

Other opinions cited:

• Missouri Formal Opinion 115, as amended

See also

• Missouri Informal Op. 2020-08: Criminal Discovery File Limits
• Louisiana Op. 06-RPCC-008: Client File Retention

Source

• Landing page: Missouri Informal Opinion 2020-07

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION: May Attorney comply with a protective order or participate in a settlement agreement requiring return or destruction of documents produced during discovery?

ANSWER: Documents in Attorney’s possession acquired during discovery are part of the client file. The file belongs to the client, with limited exception. Formal Opinion 115, as amended. Upon termination of the representation, Attorney is obligated to surrender papers and property “to which the client is entitled,” but may “retain papers and property to the extent permitted by other law.” Rule 4–1.16(d). Rule 4–1.15(d) requires Attorney to deliver promptly to the client any property that the client is entitled to receive, “except as … otherwise permitted by law or by agreement with the client.” Rule 4–1.22, Retaining Client Files, permits a lawyer to destroy a client file, or portions of the file, prior to the expiration of the six-year or ten-year default retention period, but only if the client grants informed consent, confirmed in writing; the items are not of intrinsic value; and none of the conditions in paragraphs (a) through (d) of Rule 4–1.22 exist. See Rule 4–1.0(e) (defining “informed consent”) and Rule 4–1.0(b) (defining “confirmed in writing”).
Protective Orders: In the event a client refuses to grant informed consent, confirmed in writing, to Attorney’s handling of file documents in accordance with a protective order, Attorney should seek to modify the order if Attorney can do so in compliance with Rule 4–3.1, Meritorious Claims and Contentions. If unsuccessful, Attorney is permitted by Rules 4–1.15(d) and 4–1.16(d) to comply with the terms of the protective order. See also Rule 4–3.4(c). Attorney must deliver to the client the remainder of the file or maintain the remainder of the file in accordance with Rule 4–1.22.
Settlements: A lawyer is to abide by a client’s decision whether to accept an offer of settlement, subject to the limits imposed by the lawyer’s professional obligations. Rule 4–1.2(a) and Comment [1]. A lawyer is prohibited from participating in a settlement agreement restricting the lawyer’s right to practice. Rule 4–5.6(b). If Attorney obtains the client’s informed consent, confirmed in writing, to destroy portions of the file, or obtains the client’s agreement to return to another party portions of the file, in accordance with the proposed settlement agreement, Attorney may participate in the settlement agreement on behalf of the client. See Rules 4–1.22 and 4–1.15(d).